Legislative Assembly of Ontario

The House resumed at 8:00 p.m.

OCCUPIERS’ LIABILITY ACT

Mr. Sterling, on behalf of Hon. Mr. McMurtry, moved second reading of Bill 202, An Act respecting Occupiers’ Liability.

Mr. Sterling: Mr. Speaker, perhaps the reason I have been given the privilege of carrying this bill is that, unlike the Attorney General (Mr. McMurtry), I represent both an urban and a rural constituency. This bill is extremely important to the farmers of my area in eastern Ontario and I know it is important to the farmers in the rest of Ontario as well.

I know it is also important to the urban members, but the agricultural community has been waiting for some time for this piece of legislation. I really feel it is a privilege, as the parliamentary assistant, to carry this bill forward.

I am pleased to bring forward two bills tonight, Bills 202 and 203. If there is time this evening after the Legislature has considered Bill 202, I will be introducing Bill 203, An Act to protect against Trespass to Property. That particular act replaces law which is some 145 years old.

In May, 1979, the Attorney General issued a discussion paper, which he tabled with the Legislature, on occupiers’ liability in a trespass to property.

This paper has generated discussion and the Attorney General has received some 200 responses to it. In his opening remarks introducing this for first reading, he indicated there were some minor amendments made to the legislation from that proposed in the discussion paper to the bills presented to the Legislature on December 11. I hope to be able to explain those changes and answer any questions.

In 1972, the Ontario Law Reform Commission published its report on occupiers’ liability in which it recommended the enactment of legislation imposing on occupiers one duty of care. In the view of the commission the judge-made common law, with its system of classifying entrants as an invitee, a licensee or trespasser, was: no longer adequate to govern the liability of occupiers. I can remember as a student of law one of the most difficult areas of law to understand surrounded this very topic of occupiers’ liability. It was difficult to read a case and determine how a court decided whether a person entering on another person’s land was an invitee, a licensee or a trespasser. Indeed, in many judgements one was somewhat suspicious of the reasoning supporting the finding of trespass in any one of these particular categories.

This bill basically follows the commission report by replacing the numerous duties of care that an occupier of land now owes to entrants to his land by one primary duty of care; that is to take such care as in all the circumstances it is reasonable to see that persons entering the premises are reasonably safe while on the premises. Sections 2 and 3 of the bill are designed to accomplish that purpose.

The government felt it desirable to depart from the commission recommendations to deal with several issues that are of significant importance to Ontario residents. One of those issues is a responsibility an occupier owes to those who come on his premises with the intention of committing, or in the commission of, a criminal act. Although it is likely that a court would find that such an entrant had voluntarily assumed his own risk, the government felt it desirable to state this in legislation.

While occupiers will still be prevented from using excessive force against persons entering for a criminal purpose, they should not be required to see that the premises are reasonably safe for such unexpected entrants.

A more important issue upon which the government felt legislative direction should differ from that recommended by the law reform commission is the duty of care that an occupier of rural land owes to persons who are trespassing and the duty he owes to persons he permits to use his property for recreational activities without charge for the entry or the activity.

In 1975 the government appointed a group of knowledgeable persons from many walks of life to investigate the status of trail recreation in all parts of Ontario. Public hearings were held throughout Ontario over a period of two years by the Ontario Trails Council. In its 1975 report, the council stated that the foremost impediment to broader recreation trail use and development in Ontario is the current responsibility before the law of the land owner or occupier towards people invited or trespassing on his property. In a discussion paper published by the Ministry of the Attorney General, as mentioned before, the following proposal was made:

“To protect the interests of the agricultural community and to promote the availability of land for recreational activities, special protection be given to occupiers of certain designated classes of land. Where entry is prohibited to these lands, or where entry is permitted for recreational activities without charge, the occupier’s liability be limited to dangers created with the deliberate intent of causing harm or acts done with reckless disregard for the entrant’s presence, the entrant to be deemed to have willingly assumed all other risks.”

The opinion of more than 100 recreational associations that responded was unanimous. They were all of the opinion that the recreational entrant should assume his own risk of injury. The agricultural community as well, of course, is in agreement.

Section 4 of Bill 101 has been revised from the draft that was contained in the discussion paper. The classes of land to which the reduced duty is applicable have been modified in light of the public comment we have received. However, the principle that entrants who are trespassing and those who are on the land for recreational purposes assume their own risk has not been altered.

The remaining sections of this bill are basically the same as those recommended by the Ontario Law Reform Commission and those that have been outlined in the discussion paper. I hope that this bill, and the next bill which we will introduce, will clear up a confusing part of the law of Ontario.

I know some members of the Legislative Assembly wish this to go to a standing committee. I would not like to commit myself to doing that at this time, but I would listen with an open mind to any member’s rational reason for doing that.

Mr. Lawlor: I thought you had committed yourself.

Mrs. Campbell: I was told that you had committed yourself.

Mr. Sterling: Mr. Speaker, the understanding I have at this time is that I am not certain of the feelings of all the members of the Legislature on that particular matter, but I will listen and I think --

Mr. Lawlor: We came here with a certain understanding.

Ms. Gigantes: An undertaking.

Mrs. Campbell: That was my understanding.

Mr. McKessock: Let’s finish it all up tonight.

Mr. Sterling: Mr. Speaker, I would also indicate there are several members on the government side who wish to speak on this particular matter and who have asked to take part in the rotation of the members.

Mrs. Campbell: Mr. Speaker, I am a little disturbed at the closing remarks of the parliamentary assistant. My understanding was that the Attorney General -- first of all I was told the bills would be debated tonight because the minister could not be here this afternoon; second, I was advised that the minister had committed himself to having this matter go to the resources committee.

I find it very difficult, Mr. Speaker, in this House at this time, to find commitments made and broken with great regularity. I was advised some time ago there would be no legislation, save two bills, brought forward after November 1. That went by the boards.

It is difficult. We do try to co-operate where we feel it is in the best interests of the people, but this sort of development leaves us in a very equivocal position. I cannot do other than express my resentment of this treatment.

Mr. Sterling: On a point of privilege, Mr. Speaker: I consulted with the House leader for the New Democratic Party and did not give any commitment on that basis. There’s some confusion as to where the official opposition stood on this matter. I spoke to the agricultural critic on it but I didn’t speak to the House leader for the opposition.

[8:15]

Quite honestly, I was waiting to understand what the majority of the Legislature wanted. If the majority of the Legislature or the Liberal Party want the bill to go to the standing resources development committee that’s fine and dandy by me. I don’t think I have ever tried to mislead this Legislature and I take some objection to those comments.

Mrs. Campbell: I’m sorry if the impression was left that I said the parliamentary assistant was attempting to mislead the House. I put it specifically, I thought, on the door of the minister himself. I quite understand the parliamentary assistant may not have had communicated to him that which I understood was communicated to us by the minister, not by the parliamentary assistant.

In speaking to the bill, I believe it is time we codify the matter of occupiers’ liability, I have no difficulty with that at all. I believe, however, there are some flaws in the bill that ought to be the subject of correction, perhaps an amendment. It has nothing whatsoever to do with the agricultural provisions but with the recreational provisions.

I have a little concern that as I understood the common law it had falteringly moved forward to give some kind of in-depth protection to the child who came on the premises, that a higher standard of care would be applied. This does not seem to be the case. I would like the opportunity to debate that at some other point.

That is not a matter of the principle of the bill, so I can say that we support codification of occupiers’ liability at this point.

Mr. Lawlor: Mr. Speaker, we will support the bill with the gravest kinds of reservations and on the understanding that we have a chance to clarify and work out, not only in terms of principle itself, because there has been a very grave breach of the basic principle consummated by the Attorney General, but on the basis of wording and how to construe this legislation, particularly section 4 in both bills. These are visitations from above.

In 1973 the Ontario Law Reform Commission set forth a model statute on occupiers’ liability. That has not been followed. It has been severely departed from, so much so that it justifiably caused considerable concern as to the reasons that go into that and as to the impact of those reasons over against the whole purport of the law.

There is a totally different understanding now, and to pretend that section 8 is the governing section is quite erroneous. Section 4 is the tail that wags this peculiar dog. Section 3 was the blue-eyed creature, the one the Ontario Law Reform Commission recommended to the minister after considerable study.

When I consider English law, how it so-called broadens down from precedent to precedent -- in most instances, within any eon, most painfully; and in no area more painfully than in the area of occupiers’ liability law. From the time that law was solidified, and indeed made classic in the famous case of Indermaur versus Dames in 1866 -- Lord, what law students have lived with. As the parliamentary assistant pointed out in his initial statement, the divisions and categories were on the basis of land interest only and not on the basis of the persons involved. You could see the kind of monetary and the kind of proprietary interest involved in those days, Mr. Speaker, which were the heyday of capitalism. Since that time it has severely declined, largely through the instrumentality of people like the Minister of Industry and Tourism (Mr. Grossman).

In the course of decline over the years, the various categories have been eroded. The invitee, for instance, the highest and most supreme category of them all, was not a guest, not a beloved one, not someone who came as a friend to one’s property. One’s friends were second rank. Number one in this particular categorization was he who came to do business with you, Mr. Speaker. Whether he was a scoundrel or not didn’t matter one iota; he was carrying the necessary wherewithal upon his person that gave him the sovereign right to be protected against all harm.

The second category, the licensee, was a guest on the premises; invited, permitted to be there. One was not to set traps for him; that is traps of which one had knowledge.

Finally, there was that pariah among all human beings, the untouchable known as the trespasser over against the sacred rights of retention, assertion and acquisition of property. We know that English law was like that in all its tort aspects; it gave priority to tangible goods over against human beings for five centuries. It is only of recent vintage, in recent years, that a certain humanization has taken place. That humanization has taken place precisely in this area of law, along with others.

I will cite in a few moments the famous doctrine which changed our whole perspective on law over the years, the case of Donoghue and Stevenson. The smell-in-the-bottle case, the case in which, for the first time, the judges of the high court of England, the House of Lords, said, “Who is my neighbour? What duties if any, do I have toward another human being living in proximity to me, or to a human being who may come in contact with me? Who is my neighbour and what are the responsibilities in this context directed on to the law; not who owns what?”

This law, as I see it here, is basically retrograde. It is a reversion and an enfranchisement of that reversion into the terms of this particular statute. It has to be discussed in depth, at length and with a thorough understanding. Perhaps there are adequate justifications and grounds over against particular interests in the community that would warrant it, but it bemuses me -- it doesn’t amuse me actually but does the contrary.

I wish the Attorney General of this province were here. He is the chief law officer of this province. By definition, according to McRuer, according to any theory of constitutional law as to the role of an Attorney General, he stands above all other cabinet ministers. He is relatively and by absolution nonpartisan. His legislation is directed to the sovereign whole, to the benefit of everybody in the widest possible sense.

He is not the Minister of Agriculture and Food. I give every credit to a Minister of Agriculture and Food for promoting to the hilt and in the best possible way the interests of the community which he is appointed to represent; or to the Minister of the Environment with respect to related groups; or the Minister of Energy with respect to the interests of Ontario Hydro. That, in each instance, is their job.

But that’s not the job of the Attorney General. He is not transcending his function at the present time; he is becoming a guttersnipe politician working for particular interests and allying himself in a purely political way with particular partisan causes. That is not his function and he’s betraying himself.

He’s done it with the police bill; he’s doing it in this particular legislation. It’s blatant and it’s overt and it has to stop. “McMurtry manouevres” I call them. They are a betrayal of the office and lend very great strength to saying that he no longer knows the caps he’s wearing and that he with malice perpended launches himself into particular areas representing sectarian causes. That it is not lies in the mouth of an attorney general of any province or anywhere, and it wouldn’t be known in the other jurisdictions. Becoming a political creature in that sense is to degrade the office. I hope these sentiments are conveyed to him in this particular regard.

Let’s look at some of the background of this legislation. I want to refer to the case that has caused apparently all the difficulty, the case of Peter Veinot versus Kerr Addison Mines Limited, a case decided in the year 1974 in the Supreme Court of this country.

The Supreme Court of Canada hasn’t been known for its forward actions, for its bold and imaginative ventures into reforming the laws of this country. It hasn’t been overwhelmingly progressive in this regard. Even the House of Lords, if I may say so, shows a far better grasp of contemporary conditions and contemporary situations. It has not even done so under the aegis of Chief Justice Laskin, who has been the beacon of the court and who has usually had to live under a shadow, namely, the great dissenter, always in the minority, always almost alone, trying to shape law, to give it an overall contour. That’s what I’m after here.

There are two elements in contemporary tort law that shape the whole thing, from trespassers’ liability on one side of the fence, to manufacturers of automobiles on the other. One element is foreseeability. What can one see ahead? What could one predict? What would be likely? What could be predictable in a particular circumstance? One weighs that. That’s the job of a judge, to weigh that particular concept in an overall way and shape the law not on a causality basis, or not on a half a dozen other grounds which are the ancient basis of the law of wrongs, or tort, but on the basis of foreseeability. That is the prime approach.

The second approach, as I indicated, is set forth in the Donoghue decision. I will recite very briefly the facts of this case.

A snowmobiler, with long experience and very much aware of the hazards of snowmobiling, with all the needed equipment against danger, et cetera, riding along a logging road up around a place called Virginiatown, in northern Ontario, in the winter, et cetera, got onto a well-travelled portion of that road. As be came along at night he was struck by a pipe across that road at the same level as the head of the driver of a snowmobile and was severely injured.

The question was whether there was any liability on Kerr Addison Mines in this particular matter, with respect to that obstruction place in the roadway. True, it was placed there 20 years before. It wasn’t lighted and there were no markings or signs to indicate its presence.

The court, by a margin of five to four, on the basis of a judgement rendered by Mr. Justice Dickson, ruled that there was liability on the part of Kerr-Addison. And it was a breakthrough in 1974.

[8:30]

The law reform commission report was written in 1972, so they didn’t have the benefit of this decision, but they’re directly in line. What the law reform commission recommended in this context and what the highest court in this country came to at that time are directly affirmative. That principle is under question, scrutiny, or even fire this evening as a result of what the Attorney General, knowing these decisions, knowing the tenor of contemporary law, knowing the hard drive to bring it into its present condition, et cetera, has subverted, traduced, undermined, whatever word you wish, Mr. Speaker. It’s in the process of being done, and being done rather blatantly, too, with a screen or aura as though they were performing some kind of benevolent function in the process of doing it. There is nothing like impudence in order to win assent. People’s breath is taken away from it unless they’re prepared to stand back and scrutinize what is actually happening.

1 would like to read into the record the sum of what the learned judge, giving the judgement for the majority in the Supreme Court said:

“Dickson, J.: This is an occupiers’ liability case. That branch of the law of negligence having to do with the duty owed to a visitor, or an intruder, by an owner or occupier of land has long been in an unsettled state due in part to the Procrustean and often vain attempt in an infinite variety of fact situations to fit a plaintiff neatly into the category of invitee, licensee or trespasser and then allow category to be the conclusive determinant of the landowner’s liability. It has not been found easy to reconcile the Victorian landowner’s unbridled rights with the modern law of negligence.”

It hasn’t been easy, but they’re going to do it, and the Attorney General is going to undo it.

“Nowhere are the uncertainties more apparent than when one comes to consider the position in law of the trespasser, one who enters the land of another without consent or privilege, whether the entrant is a burglar or wandering child.”

The Attorney General is making very little provision for wandering children in his legislation. There is no mention of it. It’s one of the defects and, again, it has to go to committee in order to write a clause in giving specific cognizance to the role of the child and, to some lesser degree of liability touching allurement, a document that the courts had to dream up against the harshness and purblindedness of the common law, as it has been. They had to dream up fictions in order to protect the child from straying on to property and being hurt.

Whether the entrant is a burglar or wandering child, or an irreproachable wayfarer, the general principles historically applied were those expressed in Robert Addie and Son (Collieries) Limited versus Dumbreck by Lord Hailsham. This is the basic law on the thing and this is the basic law that the Attorney General revives in the very words of Addie and Dumbreck, which has been superseded here and which was overruled in the House of Lords in Great Britain. The Attorney General reincarnates it. He brings it back to life. It’s the leading feature of his section 4. This is Lord Hailsham:

“Towards the trespasser, the occupier has no duty to take reasonable care for his protection, or even to protect him from concealed danger. A trespasser comes on to the premises at his own risk. An occupier in such a case is liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser or at least some act done with reckless disregard of the presence of the trespasser.”

Let me pause there for a moment. When the law was initially taught and even prior to that time, do the members remember the famous case of the spring guns, the various forms of spear-like obstacles and catapults erected on the property, all perfectly legitimate up to a certain time in history, as the way of keeping trespassers out of property? In other words, up until the middle 18th century one was able to wound, harm and even possibly kill another human being in this particular regard.

At this point I want to break off for a moment from Justice Dickson’s judgement and refer to an article published by the Law Society of Upper Canada, Special Lectures, 1973 -- the year before -- written by a practising lawyer by the name of Percival, Recent Trends in Occupiers’ Liability. He is talking to lawyers at the behest of the law society of this province, outlining and bringing up to date, as the law then stood, what the position for occupiers’ liability was.

He says at page 105 of those lectures, “The law of occupiers’ liability has remained largely unaffected by the broad principles of Donoghue versus Stevenson. The general law of negligence now requires one to take reasonable care to avoid acts or omissions” -- that is the general law of negligence; automobiles or manufactured goods or a hundred other things -- “which one can reasonably foresee would be likely to injure one’s ‘neighbour’. Our present approach to ‘occupier’ factual situation wholly ignores that principle.

“To understand why the law of occupiers’ liability is so different, one must appreciate its genesis and development. The courts of England in the 19th century conceived the original principles of occupiers’ liability to fulfil that country’s then fanatical obsession with the sanctity of real property rights, even over that of human life.”

Further on, after citing a number of cases, he is talking about a case called the Herrington decision, which is a child injury case, British Railways Board versus Herrington, decided in 1972, 1 All England Reports, which overruled the House of Lords’ decision. Lord Morris, for instance, said, “For the reasons which I have given I consider that the learned judge was warranted in deciding that the respondent was entitled to recover. It involves also that on its facts, the decision in the Addie’s case should, in my view, have been the other way.”

The House of Lords, one judge after another, knocked Addie’s case down, knocked down the very principles the Attorney General has enunciated in this legislation, saying it was out of date, it no longer had relevance to the contemporary world and that other considerations apply.

I refer you to that and to Lord Wilberforce’s statement, Mr. Speaker. Further down it says, “For the first time in the field of occupiers’ liability the House of Lords was prepared to utilize the ‘neighbour’ concept. Lord Morris at page 767 put it squarely: ‘Could a child such as the boy in the present case be regarded as a neighbour? When Lord Atkin posed the question, ‘Who then in law is my neighbour?’ he said that the answer seemed to be ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ No one would suggest that every trespasser is a neighbour, but within these words, was not the small boy in the present case a neighbour?”

It goes on in that vein and develops the law as it stands at this hour in the province in which it has been adopted by the Supreme Court.

I want to go on at page 314 of the Veinot decision. Mr. Justice Dickson says: “These rules, of course, perpetuated the traditional 19th century concern for the sanctity of landed property. The general principle was that a landowner could do as he wished with his land. He owed no duty to an intruder, however accidental or inadvertent the intrusion, other than to refrain from shooting him or otherwise recklessly and wantonly doing him harm. The rigour of the rule is exemplified in such cases as Edwards versus Railway Executive. As could be expected, various inventions were employed from time to time to modify and ameliorate the harshness. In some of the cases the landowner’s consent was implied or imputed, particularly in ‘children’s cases’, the status of the intruder being elevated from that of a trespasser, which he clearly was, to that of a licensee, which he clearly was not.

“In other cases a generous meaning was given to the phrase ‘reckless disregard’ or a tenuous distinction was drawn between land in a static condition and land upon which an operational activity was being conducted ... ” The Attorney General is aware of that distinction and in his legislation he has given cognizance to the static over against something being done on the land, which had taken into the context of possibly injuring someone, “ ... productive of injury.”

Now listen to this: “In time, two distinct, not easy to reconcile, lines of jurisprudence emerged. One perpetuated the letter and spirit of Addie’s case. The other” -- that is the line the Attorney General has taken in his legislation -- “gave effect to changing ideas of social responsibility and imposed upon the owner of land duties well beyond those in contemplation in Addie’s case. Commission for Railways (N.S.W.) v. Cardy and Videan v. British Transport Commission.”

That is a case where Lord Denning had a hand in shaping this law, the great shaper of contemporary law in many areas. I looked up his volume before I came here, the one recently published by himself. He makes no mention of these cases at all. His reforming zeal is so great in other areas that he finds this not foremost in his mind. In the Videan decision he certainly was there.

These cases they are citing here “ ... presaged the change which found expression in the leading case of Herrington v. British Railways Board. That case was decided within the context of the Occupiers’ Liability Act, 1957, of England, which imposed a ‘common duty of care’” -- without exceptions as the Attorney General has all over the place, just the common duty of care in this particular legislation -- “on occupiers towards all persons who might lawfully come on to their land, but left unaltered the existing law as to the trespassers.”

In other words, they set up a category of -- what was he, guest, invitee? -- which knocked out the distinction between the invitee and the licensee.

Later on the Scots, two years later in 1960, passed the Scottish Occupiers’ Liability Act where they wiped out all distinctions. They are now proceeding, as 1 thought the minister was going to do with his legislation, in across-the-board fashion to leave it up to the courts to make the judgements and to weigh as to when a trespasser would or would not, within reasonable grounds, be awarded any compensation.

The same thing pretty well happened in New Zealand under their law. But not for Ontario. There are too many political considerations in Ontario. There are too many wooings. The Attorney General would too much like to be the number one politician in this province rather than performing the prime duties that he has of forwarding, consolidating, giving voice to, shaping and being aware of the best developments in the laws as they are coming through from all jurisdictions, in this case, particularly from Great Britain.

“In Herrington’s case their Lordships exhaustively considered the nature of the duty owed by occupiers to trespassers. Lord Reid applied the subjective test. He said: ‘So it appears to me that an occupier’s duty to trespassers must vary according to his knowledge, ability and resources. It has often been said that trespassers must take the land as they find it. I would rather say that they must take the occupier as they find him.’” And that is a far better test -- “take the occupier as they find him.”

[8:45]

Later on in the same page, “So to the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill or resources could reasonably have been expected to have done or refrained from doing before the accident something that would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come, I think that most people would regard as culpable failure to give any thought to their safety. He may often reasonably think, weighing the seriousness of the danger and the degree of likelihood of the trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe or curtailing his own activities on his land, that he could not be fairly expected to do anything.

“If he could at small trouble and expense take some effective action, again, I think that most people would think it inhumane and culpable not to do that. If some such principle is adopted there will no longer be any need to strive to imply a fictitious licence.”

The test of common humanity was also applied by Lord Morris, of Borth-y-Gest. “In my view, while it cannot be said that the railways board owe the common duty of care to the young boy in the present case, they did owe to him at least the duty of acting with common humanity.”

The nature of the duty of care was described by Lord Wilberforce in these words. “Again, it must be remembered that we are concerned with trespassers and a compromise must be reached between the demand of humanity and the necessity to avoid placing undue burdens on occupiers. There is a balance there. What is reasonable depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it.” The law, in this context, takes account of the means and resources of the occupier or other person in control. What is reasonable for a railway company would be very unreasonable for a farmer or, if this is relevant, a small contractor.

Lord Pearson used these words: “It does not follow that the occupier never owes any duty to a trespasser. If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, well then the occupier has a duty to the trespasser. But it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is the duty to treat the trespasser with ordinary humanity.”

That is the development of the law. In the next page he gives Denning’s judgement, and I won’t read it into the record. It is there for anyone who happens to be interested in this area of law and to see how that has developed.

Other members of the court, particularly Mr. Justice Martland, giving the dissenting judgement, et cetera, took a different view, a highly legalistic, technical view about implied licences and about the old definition of what a trespasser was. If he was technically on somebody else’s land then he suffered the consequences and that was the way he ruled. Just as the Court of Appeal for Ontario ruled that way over against the decision of Mr. Justice Houlden, in the Supreme Court in this province, who, using the fictitious device of an implied licence to be on the land, gave the judgement in the first instance to the plaintiff.

That was heartening; it was a real advance in the law. It was a new approach and a broadening out of the principle of this whole area, making it applicable to a particular narrow segment of that area. The reaction with respect to it apparently has been intense and not weighing the various factors in a really forthright and objective way that had gone into the development of this area of the law.

At this point, I would like to make some reference to documents and remarks that have come into my hands about the Attorney General. His parliamentary assistant, as I heard him say tonight, received 200 or so briefs of which we have been privy to very few. I am sure if this goes into committee some of these briefs might be made available to the members of the opposition who have responsibility for these matters.

Apart from that, in my hand I have a letter from a teacher at the University of Toronto faculty of law, Robert Pritchard. He sent a letter to the Attorney General on June 14, 1979. He says: “However, within section 4 you have proposed a very substantial exception to this general approach, in that on lands listed in section 4 the duty created in section 3 is not to apply unless the dangers were created with deliberate intent of doing harm or damage. As a result, one can immediately anticipate numerous cases in which a person will be badly injured by unreasonable conduct by the occupier of the land, but in which the injured individual will be unable to achieve compensation because of immunity created.”

In other words, the act cannot be as the wording goes in this section, that the occupier must not create a danger with “deliberate intent,” or with “reckless disregard.” Nothing is said as to the “reasonable” that is mentioned in section 3. It goes beyond the reasonable. I would interpret it that one may act unreasonably provided he doesn’t act with a deliberate intent to do harm. There are lots of gradation between unreasonable, reasonable and malicious, for heaven’s sake, and the bill has carved out that area, giving complete licence to act as one will in that gambit of activity.

“These cases of persons going uncompensated, despite conduct by the occupier which was unreasonable in all the circumstances, will be tragic ones. They will often involve children. They will frequently involve very substantial individual damages. They will often lead to persons injured for life and left destitute. They will almost always involve people engaged in the most innocent of activities and they will often happen in circumstances where the landowner’s conduct will be conduct which no one would condone. There will be cases that will result and they will bring the statutory reforms that you are now proposing under close scrutiny.

“I would suggest if this legislation were enacted and then a series of these injuries were to occur, which they inevitably will, a searching critique of the provisions of section 4 will be undertaken. At that time I suggest the criticism will be no less scorching than that which common-law lawyers have for years brought to bear on the present system of occupiers’ liability.”

Let me pause here just for a moment, Mr. Speaker. What the Attorney General is trying to do in the legislation is to wipe out a whole series of artificial, silly, archaic categories of the law. What does he do? He sets up a whole series -- I won’t say they’re archaic because they’re brand new -- of categories of his own. He has five of them. If you don’t like categories, Mr. Speaker, you can’t be overly affectionate about the particular provisions of section 4 in this statute.

“At that time I suggest the criticism will be no less scorching than that which common-law lawyers have for years brought to hear on the present system of occupiers’ liability. Again, we will have inequitable results, this time dependent not on the category of visitor, but rather on the category of land which the individual is visiting.

“Explanations of these results based on the statute will be no more convincing to injured members of the public than our explanations based on the common-law category inherent in the present system of the common law.”

That is one remark. Just to take it a little farther, I have before me a letter from Stephen Fram. He is counsel to the policy development division. It is a letter directed to Professor Waddams of the University of Toronto law school. 1 take it that Stephen Fram has been involved in framing this and has had a great deal to do with this legislation; he would not be writing this letter otherwise. We will no doubt meet with friendly, almost Christmas-like accolades some time late in January.

He says this in reply to the professor, and I will come back to the initial statement: “There is no doubt that section 4 would result in a risk” -- this is what the minister’s department says -- “that some individuals be injured without the opportunity to obtain compensation. However, section 4 is not intended to exonerate the unreasonable occupier of land of the designated types.”

I’ll stop there and turn over to Professor Waddams’ reply of July 11 this year.

“Thank you for your letter of June 28. In it you say, in paragraph two, ‘However, section 4 is not intended to exonerate the unreasonable occupier of land of the designated types.’ If this statement is true, section 4 must be amended, for ‘exonerate the unreasonable occupier’ is exactly what it does. Indeed, the only effect of section 4 will be to protect the unreasonable occupier, since one who acts reasonably cannot be liable in any event under section 3.” That is true.

Mr. Fram says: “Section 4 is intended to inform the occupier of land of this type that he need not need any standard of care higher than that which is traditionally applied to trespassers. Given the nature of the lands to be included in section 4(3) we believe it would be reasonable for occupiers to be liable only for dangers deliberately or recklessly created. Section 4 can be perceived as a legislative direction as to how section 3 is to be applied in a specific set of circumstances.”

What nonsense! No one could possibly read the two sections in conjunction, particularly when the minister says at the beginning of section 4, “section 3 doesn’t apply.”

Anyhow, much better than me, Professor Waddams says: “At the end of the same paragraph you say ‘Section 4 can be perceived as the legislative direction as to how section 3 is to be applied in a specific set of circumstances.’

“If the intention is to make section 4 subordinate to section 3, redrafting again is necessary. At present, section 4 says flatly: ‘The duty of care provided for in subsection 1 of section 3 does not apply’.” So how can Mr. Fram say it does when by express purpose it says it doesn’t? It’s been written in deliberately in that way in order to exclude its operation.

Continuing with Mr. Fram’s letter: “Very few claims arise out of the use of rural, nonindustrial land.” If that’s the case coming from the minister’s department, why all the palaver? Why the elaborate gyrations to depart from what has been laid down as a model statute from the minister’s own reform commission, and set up a wholly new clause which the law reform commission has never seen? No one with that kind of authority has ever had an opportunity to peruse, analyse, subject it to general examination.

A thing is issued in the spring across the board; it’s not referred back to the law reform commission for reconsideration to see how fitting it is. Why? Because the minister knows it’s too wretchedly political and too much a posturing to individuals, et cetera, to meet the accord of fair-minded, objective people who are trying to shape the law in a way that is outside and above partisan politics in its operation.

That’s what the law reform commission is there for, so they can take the flak off the government, so they can act as a lightning rod and, thirdly, because of their erudition, because they know and they’re living with contemporary law all over the world, which the government is not. They are in the members’ weasel holes in Ontario, seeking out the largest advantage they can possibly find in any particular area of the economy to stay in office or to gain office. They’ll sell their souls to whatever comes along. It’s a betrayal of the basic concept of law, as I see it.

“Very few claims arise out of the use of rural, nonindustrial land. Nevertheless, the occupiers of rural land are fearful of claims against them. Though these fears appear groundless, the existence of fear results in the foreclosing of recreational activities to many individuals.”

He says these fears are groundless and under the law as it was framed, I think, it could perhaps be strengthened with respect to orchards and lands under cultivation and that certain preservations could be made. But the minister doesn’t have to go holus-bolus the way he has on this legislation in order to grind down and eliminate from existence the rights so hard won in a century of court proceedings. If he can’t do something benign, he goes whole hog in the opposite direction and then absents himself from the House.

“It is impossible at present to convince occupiers of rural land that they have no justifiable fear of being wrongly sued and improperly found liable.” I think that is true. I would like to see the cases in which these suits have been successful, despite the Veinot decision, about which everyone is somewhat hysterical.

“It is impossible to convince rural occupiers of land” -- this is the Attorney General’s department talking -- “that the decision in Veinot was a misapplication of the principle that a person must take reasonable care not to injure his neighbour. It is fruitless to attempt to convince a rural occupier of land that occasional misapplications of sound principle leading to the possible over-compensation of some entrants on land do not justify the enactment of the principle that trespassers and recreational users of their land should not assume their own risk.

“It is clear that the brief submitted from the Ontario Trails Council and the ministry’s discussion with organized recreational groups that most persons entering without charge on rural, nonindustrial land for recreational purposes expect to assume their own risk.” I mention that because I suspect in his reply the parliamentary assistant will say that is the case. I only reply to him that he should pay some attention to what Professor Waddams and Robert Pritchard have indicated to him: it is not for any group within the community to surrender rights on behalf of the rest of that community, in any way, however well intentioned and whatever lengths they think they have to go to in order to achieve some small prerogatives.

The professor says: “You agree with me that the fears of nonindustrial rural occupiers are groundless, yet you say it is impossible to convince them this is so. If the arguments against the proposed legislation are soundly based they will convince reasonable people. If reasonable persons refuse to be convinced, their proposals should be rejected where they are contrary to what a reasonable person will perceive as the public interest.

“Let me remind you we are talking about the rights of innocent children, negligently injured to reasonable compensation. In paragraph four you say it is clear most persons entering without charge on rural, nonindustrial land for recreational purposes expect to assume their own risk. One may ask, risk of what? No one expects to assume the risk of unreasonable conduct and it is only unreasonable conduct that will attract liability in the first place.

“I would point out too, that the immunity in section 4 as presently drafted is not limited to nonindustrial lands. I regard railroads and utilities as industries.”

He goes on in that vein. I trust the members have read these briefs and are up to date on them. We would like to peruse them. It will go into the total picture of what is involved in the legislation as it has come before us.

There are other things that must be discussed which have never been canvassed by the law reform commission or by anyone else. I am thinking of a doctrine in law having to do with consent, when a person consents to certain risks. As you know, in criminal law I can’t consent to your assaulting me, Mr. Speaker. The law will not permit that kind of consent. In civil law it is possible to have a whole series of consents and this is one of them.

In the relevant section, it says, “The duty of care provided for in subsection 1 of section 3 does not apply in respect of risks willingly assumed by the person who enters on the premises.” Back in 1973 the law reform commission referred to the doctrine of volenti non fit injuria, as it is called -- everything is done in Latin because we can’t speak English any more. It’s an old doctrine in law and it’s the way lawyers express themselves. It has its point, in any event.

[9:45]

What Allan Leal has said about this is that it really doesn’t matter. The use of the consent has been severely cut back and is increasingly being narrowly construed by the courts and therefore the court won’t take as consent what maybe a layman would consider to be consent. That’s as far as they go on the issue in the law reform commission report. Then they cite three cases proving that proposition of the narrowing of the recognition of consent. I went to look them up and took just the headnotes of the three.

One of them has to do with a gratuitous passenger who is injured. This is the case of Car and General Insurance, in 1956. It says: “If the driver is held to have undertaken at the outset to drive with reasonable care, knowledge of the passenger at a subsequent stage of the journey of the driver’s intoxication and of the risk thereby created does not operate to release the driver from the duty originally undertaken” on the principle of volenti. That’s number one.

The second case has to do with a police officer. “The fact that a police officer is aware of a risk of injury which in fact befalls him in the discharge of his duty does not mean that he voluntarily assumes the risk.” That’s fairly commonsense. I don’t know how that argues in the direction of saying that consent is being narrowly construed by the courts. I think It is a very special case; a case of a police officer.

The next case is the case of a driver who continues to drive although he is aware that he is sleepy. He is guilty of gross negligence when he falls asleep and the car goes off the road, killing a gratuitous passenger. So two cases are gratuitous-passenger cases.

In this case they said the gratuitous passenger could still recover, although he could hardly be expected to be fully aware of the sleeping habits of the man at the wheel.

I don’t think the cases cited by the Ontario Law Reform Commission as to what weight one should give to volenti non fit injuria are either here or there, or help a bloody bit. I think we are going to have to get a better definition and write in what we mean. Some kind of amendment is probably in order with respect to that particular matter. It’s left too much up in the air. It wipes too much out.

What risks are willingly assumed by the person who enters on the premises? I think the English legislation tries, up to a point, to clarify that issue and determine it to a greater extent than what is done here.

The wording about assuming all risks, et cetera: I think we need to go into committee in order to discuss what the ambit of those risks is, what the limits are in various cases.

Section 4(3) says: “A person who enters premises described in subsection 4” -- that’s that fairly long list of seven or eight categories -- anybody falling under those heads “shall be deemed to have willingly assumed all risks.” That has to be scouted. That has to be looked at carefully.

In a sense it was never done by anybody out there -- I particularly think of law commission -- certainly not by the law commissions in Great Britain or in New Zealand, who worked on the same area of law. They never saw this kind of wording in their lives and probably wouldn’t believe it if they did see it. Ontario established a new norm of uniqueness in terms of pure persiflage. We have it before us today.

Also, a deeper interrogation of Hazeldean and Dawe, the decisions there with respect to an independent contractor, and the wording as to whether it’s precise enough et cetera, seemed to be in order, as does the problem with respect to landlords and tenants as to the landlord’s duties of repair and the provisions that have been made in that regard.

Then there is the whole area of higher duties -- innkeepers’ rights, common carriers or hirement for bailment of various kinds, I don’t think that has had enough cognizance or enough time spent on it.

Regarding the role in master and servant relations, and the role in this statute as compared to the next one we will discuss, trespassing with respect to the labour law, picketing and the effects on the whole area of industrial relations are not mentioned here at all, despite the fact that section 4 picks up the massive prohibitions written into the Trespass to Property Act. The whole thing is picked up and incorporated within this legislation.

There is area after area, and ground after ground, upon which this legislation deserves and must receive, but never has received, adequate and determinate scrutiny.

As I understand it -- and my colleague who received the promise is here now -- we came in here this evening with an understanding that this matter would go to committee. I wasn’t sure, when the parliamentary assistant spoke previously, whether he was giving plenary assurances to that or vacillating a little bit. There will be no vacillation on this issue or there will be hell to pay in this House, I warn him.

Mr. J. Johnson: Mr. Speaker, I rise to support both bills, but Bill 202 to start with. I would like to make one comment in regard to something that has been told to me many times: We have too many lawyers in this Legislature and not enough people with common sense.

I find it extremely intriguing that a socialist should quote from the House of Lords, and quote lord after lord after lord. I resent the criticism of our Attorney General, who in his wisdom deemed to present this bill to the member for Carleton-Grenville (Mr. Sterling), his parliamentary assistant, who is more than able to carry this bill. I give the Attorney General credit for his common sense.

I think the member for Lakeshore (Mr. Lawlor) has suffered from his visit to New Zealand and has got mixed up in the trespass between the North and South Islands.

At this time, I would like to pay tribute to the member for Middlesex (Mr. Eaton) who, on December 1, 1977, introduced a private member’s bill, An Act to amend the Petty Trespass Act. It was a bill that was long overdue, I say to the NDP members; not to the Liberals, because they seem to have more common sense.

[9:15]

The explanatory notes of that bill say: “The purpose of this bill is to remove from requirements for petty trespass that land be enclosed or that land must be posted before one can be considered a trespasser.” It places the onus on persons to ask permission to enter on another person’s land” -- which is only common sense -- “and it increases the maximum fine to $1,000 from the present $100. It removes liability from a property owner for trespassers unless deliberate intent to do harm to the trespasser is involved.” This is something any reasonable person would surely accept.

Farm and Country December 20, 1977 says “Speedy Action on Hunter Trespass Law Needed.” The article reads:

“Our last editorial appealed for bright MPPs to pick up the ball and draft a private member’s bill. One moved quickly. Robert Eaton, Conservative for Middlesex. His bill, the result of consultation with farmers and the Ontario Federation of Agriculture, meets the needs of Ontario rural communities. Mr. Eaton’s bill, we feel, should be equally effective, especially when so many rural hunters have given it wholehearted backing. After all, most of those hunters also own farms and they have personal horror stories involving rogue hunters. Rural Ontario should give the MPP for Middlesex a vote of thanks, and in the next election a vote.”

Another editorial, March 27, 1979: “Eaton Feels Trespass Row Solution Now Within Sight.” That is if you people will agree.

This was a story in the Sudbury Star. Some members opposite might know where Sudbury is.

“The Ontario Legislature will soon be presented with revised laws governing trespass designed mainly to be of help to farmers and protect them from unjustified lawsuits. To a city dweller with scant knowledge of the problems presented by owning large tracts of property, not all of it visible from an upstairs window, it will come as a surprise to know how little protection existing trespass laws give the farmers. Why would a person who is not supposed to be on somebody else’s property have any right to sue if something happens to him?”

“Rights of Farmers Need Consideration.” That was the paper in Sarnia, Thursday, April 25, 1978.

Farm and Country, March 27, 1979, carried a heading “Revised Trespass Bill.”

You people don’t even know what trespass means. Bill 202, An Act respecting Occupiers’ Liability, and the companion piece of legislation, Bill 203, An Act to protect against Trespass to Property, are both excellent bills.

As a member representing a rural riding, I know the vast majority of my constituents will be in strong support of this legislation. These bills achieve several significant and beneficial results. They are beneficial to the landowners, and especially to the farming community, but in the long run they are beneficial to the hunters, the anglers, the hikers, the campers, in fact all outdoorsmen. If this legislation is not passed there is going to be quite a controversy between the two groups; this is one way to help resolve it.

The benefits I perceive in this bill are several. One, it restores the property rights to the landowners, and especially the farmers, the people who daily live and work on their lands and have been the victims of trespassers for years.

Two, it relieves the owners of assuming the responsibility of injury to a person or persons on his property with or without his permission. The present law is completely unacceptable when a farmer can be held responsible for damage or injury to an individual trespassing on his property and he is not even aware they are on his property.

It reverses the burden of proof. Under this legislation the onus will be on the individual to prove he does have permission to be on someone else’s private property.

There has been some concern regarding written permission. The concern many farmers have is that in granting written permission they also assume liability. This is not so. If an individual is injured on a landowner’s property, whether the individual is there with or without permission, under this legislation the landowner is not responsible. This is the way it should be.

The fines for trespass are now realistic and meaningful, and should have some positive results.

One main point is restitution. The courts, under this legislation, would have the power to make judgement for damages up to $1,000. If the damages exceed this amount, the person suffering the damage has the recourse to seek further action.

Mr. Lawlor: He is on the wrong legislation. He is not talking about the same acts at all.

Mr. J. Johnson: Hell, you’ve been all over the place.

Mr. Acting Speaker: He is expressing his views as you have expressed your views.

Mr. J. Johnson: You were talking about NDP on the picket line, for God’s sake. Where do the picket lines fit into this?

Mr. Acting Speaker: Order.

Mr. Warner: He’s not on the right bill.

Mr. Acting Speaker: Order. He is speaking to the principle of the bill.

Mr. J. Johnson: One area of concern I have is in the signing of property. I would assume that property that is fenced or cultivated would not have to be signed; only vacant, unfenced land would fall into the category requiring signs or markings of some sort.

It is a wishful hope, but I did come into the Legislature tonight with the unrealistic hope that all members would support this legislation and possibly we could have it passed tonight. I know many of the Liberal members expressed the same sentiment, but unfortunately the members of the third party have different opinions and there is no way of changing.

I do hope it is passed for second reading, referred to the resources committee, and we can then have proper hearings in January or February, not that it may be referred to the House in the spring and passed as soon as the House reconvenes.

Mr. Riddell: I will follow the trend established from the very beginning this evening when we started talking about these two bills. The parliamentary assistant alluded to both bills. The other speakers may have tried to confine their remarks to the occupiers’ liability bill, but since they are companion bills on which most of us have something to say we’ll cover the ground now so we won’t be getting up a second time.

I support both bills, but I do share the concerns expressed by the member for St. George (Mrs. Campbell) and the member for Lakeshore (Mr. Lawlor). They probably had every justification to vote against these bills on second reading. I can’t do that, because I am speaking on behalf of the farming community and this is something for which it has been asking for a number of decades.

We recognize these two bills replace the current Petty Trespass Act, which is almost identical to the original passed in 1834. It is unbelievable that we are dealing with the same kind of legislation, with very few amendments, first introduced in 1834.

As the minister stated when he introduced this legislation on December 11 this year, these bills reform two different but related areas of law, the law governing an occupier’s liability to those who come on to his land and the law protecting an occupier from trespassers to his land. A white paper for discussion purposes was tabled in May of this year by the Attorney General. Bills 202 and 203 are pretty well the same as the discussion drafts of the bill that were contained as appendices B and C in the white paper. Very few changes were made.

The minister indicated in the House that hundreds of letters were received by him on the proposals contained in the discussion paper. I can’t understand why the Attorney General refused to introduce these bills prior to December 11.

He sent the discussion papers out to the various groups that would be interested in this subject and I am sure he got the responses. As a matter of fact I think he set a certain time frame in which he was to receive responses so that he could draft legislation.

Mr. Eaton: The end of June.

Mr. Riddell: All right, the member for Middlesex said it was the end of June. Surely, if he received these responses by the end of June he could have had sufficient time to draft legislation, get it into the House and, if need be, send it to committee and we could still have had the bill passed in its amended form ready to go into effect in the fall or winter months of this next year.

I also fail to understand why the Attorney General is not here to answer the questions we have on this legislation. I really think he is showing some contempt for this Legislature. I really think be is failing to assume the responsibilities he has as the Attorney General.

I have every respect for the parliamentary assistant, but the real concerns about this bill have been expressed by the member for St. George and the member for Lakeshore. I am not convinced that the parliamentary assistant fully understands it. I am not even too sure that the Attorney General understands it, but he should be here to listen to what is being said.

The member for Wellington-Dufferin-Peel gave the member for Middlesex all kinds of credit for introducing an amendment to the Petty Trespass Act back in 1977. I commend the member too, but I will say that the member’s name came up in the lottery, he searched diligently for a bill to introduce, he went back to the resolutions and discussion papers the Ontario Federation of Agriculture put out and as a result of the work done by the Ontario Federation of Agriculture the member for Middlesex introduced the bill. I am going to say that back in December 1976 I wrote a letter to the Attorney General strongly urging him I to review the current bill, the Petty Trespass Act.

Farmers, the Ontario Federation of Agriculture and such recreational groups as the Trails Council of Ontario have been urging the government for some few decades now to change the trespass law. For a number of years farmers have been exhibiting growing concerns regarding property rights for the owners of private land.

As leisure time and mobility increase for the public there are increasing demands for recreational pursuits. Farm equipment and farm activities may pose increasing hazards for intruders who may be unaware of the risks that could be encountered. The new law expands the classes of land that do not need signs in order to keep intruders out. This will include land under cultivation, gardens, orchards, vineyards and premises on which trees have been planted.

The government proposes to replace the existing trespassing prohibition with three specific offences: entry without permission; prohibited activity; and refusal to leave after being told to leave. The burden of proof to show that permission to enter was received would lie with the accused.

In addition to “no trespassing” signs, “no fishing,” et cetera, the government intends to allow colour-coded signs. A sign with a picture of a diagonal line running through a fish or a horse would be permissible replacements for “no fishing” and “no horseback riding,” but the federation of agriculture has indicated that such signs would be impractical, because we know what happened to the signs farmers had to post on their property if they didn’t want trespassers on that land. The signs were simply torn down and, once again, the farmer was held liable if anything happened to a trespasser while crossing his land.

Red markings on fences, trees and posts would mean entry is prohibited; yellow markings would mean entry is prohibited except for activities specified by the owners. It would be the responsibility of the person entering to determine which activities are permitted.

Changes to the Occupiers’ Liability Act will mean that other than acts done with deliberate disregard for the presence of someone using the land, people who use other people’s lands would be deemed to have reasonably assumed all risks. A land owner will have no duty of care to a trespasser on his land, other than to avoid creating deliberate hazards.

But I can understand the concerns that the members who have spoken have for recreational land, land that innocent victims, children, could wander on to feeling they had every right to be on that land. Of course, if the owner of the land was negligent -- let me use an example. Maybe there was a well on this land and maybe the top had been removed, or maybe it was just a plank top and a child wandered on there and removed the plank, or if some branches had been blown across the top of the well and then snow had covered that, somebody who was snowshoeing, or a child could wander on there and drop into that well. I am not too sure that the occupier or the owner of that land shouldn’t have had the responsibility to make sure there was a proper top on that well and I am not too sure that in that case the owner shouldn’t have been held liable for negligence.

Mr. Laughren: What are you sure of?

Mr. Roy: No, no. He can take a flexible approach.

Mr. Riddell: That’s right.

Mr. Roy: That’s what he does. He is not like the NDP. They are sure about everything.

Mr. Riddell: I know what side I am on, but I can fully understand the concerns and for that reason I certainly don’t object to the bill going to committee. I don’t think the federation of agriculture objects, although I do know the farmers and the farm groups representing the farmers would like to see this legislation passed before the House prorogues. I don’t think that is going to happen because, as I say, there are a number of very important matters that need to be discussed in committee.

The Ontario Federation of Agriculture made a submission to the government on this proposed legislation. They are pleased that the government has finally dealt with the concerns of rural property owners, especially farmers, regarding the free and quiet possession of their property and that for the first time since 1834 farm land is now recognized as private property and not as a playground for the province. Therefore, the farmers consider this to be a very important piece of legislation.

However, the federation of agriculture, as spokesman for the farmers, has felt that some improvements can be made and this is the reason they don’t particularly object to the bill going to committee. Along with some other minor changes they would like occupiers to be so defined as to include a tenant, because we are seeing many more tenant farmers. If the Minister of Agriculture and Food (Mr. Henderson) and his colleagues over there are going to permit foreign ownership of land to continue, there are going to be more tenant farmers all the time and therefore we had better make sure they are included in this legislation.

The federation would also like the definition of “premises” to be expanded to include implements of husbandry.

These are some of the recommendations we will be making if this bill goes to committee.

I feel that the bill should be sent to committee for the reasons that have been outlined very clearly by the member for St. George and the member for Lakeshore. This also would give the Ontario Federation of Agriculture and other groups a chance to come in and make presentations.

But we certainly do support the principle of the bill in second reading and I hope we can expedite the thing through the committee. There’s no reason in the world why it couldn’t go to committee after the House prorogues and before it starts its new session in February or March. Then the legislation can be reintroduced for third reading and we can get it into law by March or April and it will be clear sailing from there on in.

Mr. Speaker, all I can say is let’s work hard if it is going to go to committee. Let’s expedite it, get it into committee, get it back into the House and then it will be in effect for the fall of 1980.

Mr. Warner: As the Speaker certainly recognizes, people in rural Ontario have had a very deep and legitimate concern about protecting their property as people from the urban centres endeavoured in use rural property during recreational pursuits. I might say that some of the organizational clubs have had a concern as well, wanting to know what properties are available for snowmobiling and other winter activities, not wanting to intrude themselves upon farm property in an unwarranted fashion.

As the Speaker is well aware, the farm community of this province has served us well; it has served us in a fashion that is exemplary. It has provided for the people of Ontario a rich heritage in providing food for our table, in providing a moral and family standard to which we all subscribe. So when the farm community of Ontario raises a concern, every one of us should listen and listen closely.

Unfortunately the government has responded in a rather slipshod way. In fact, the government is misleading us; as the Speaker is aware, the explanatory note provided with Bill 202 is misleading. The explanatory note says, “The bill is substantially that recommended by the Ontario Law Reform Commission ... ” That’s not true. It’s not true at all. The parliamentary assistant knows that.

I must first put on the record my very deep regret that the Attorney General did not see fit to be here tonight. The minister of headlines couldn’t find it in his capacity to be with us. That shouldn’t surprise any of us, as each one of us knows there’s only one reason why that minister brings forward legislation: he brings it forward only to capture headlines for himself; he doesn’t have the least interest in presenting good legislation but only that kind of legislation which will garner him headlines.

Where is the Attorney General tonight? Where is he? He wouldn’t lower himself to be in here tonight because he disdains this Legislature. It’s such an inconvenience for him. The Legislature is an inconvenience to the Attorney General and you and I know that, Mr. Speaker.

This cheap attempt at headlines is so evident in the misleading explanatory note.

Interjections.

Mr. Speaker: Order.

Hon. Mr. Drea: On a point of order, Mr. Speaker: I don’t know that where the Attorney General is tonight is germane to second reading of this bill.

Mr. Warner: Mr. Speaker, the bill is in his name. I would expect that he would he here and he is not and I know why. He has already got the headline and that’s all he cares about. He knows full well --

Mr. Eaton: You are being unfair. You are taking cheap shots. That’s what the parliamentary assistant is for.

Mr. Warner: I will tell you I am sick and tired of his silly, cheap games. He can bring in legislation which purports to protect the farmers, yet at the same time distort the report from the law reform commission. The law reform commission certainly put forward the material that is present in section 3 of this bill, but they did not cut off the legal representation of citizens as is represented in section 4 of this bill. That is what bothers me.

Hon. Mr. Drea: You don’t even know what you are doing here.

Mr. Warner: Now that I have roused from slumber the member for Scarborough Centre I may read to him the results from the case of Peter Veinot versus Kerr Addison Mines Limited in which the case, for my friends on the government side, is that there should be a reasonable level of care. It is called the neighbour principle as explained by the judges in the judgement on that case -- that there should be a reasonable level of care extended and the Attorney General has decided to erase that.

If this bill passes in its present form, it turns back the decision that was rendered on the Veinot-Kerr Addison Mines decision, a landmark decision about the rights of individuals when they find themselves on private property. It disturbs me greatly. In fact, section 4 of this bill is a licence to be unreasonable, that’s what it is. What the Veinot case found was if an individual through no negligence of his own found himself on private property and was injured he should be compensated. Section 4 of this bill negates that and says no matter what the private individual may do on his own property, there is no onus to be reasonable, no onus to maintain safe conditions on private property. That’s what this bill says.

The parliamentary assistant knows that. The Attorney General knows that. That’s probably why he isn’t here tonight. This bill, in very straight legal terms, is a very dangerous kind of bill to civil liberties. The member for Scarborough Centre knows that, as well as other members of the Tory caucus.

[9:45]

Mr. Speaker, in the interests of good legislation, I will certainly consent to second reading, but I will serve notice that when this bill goes to committee section 4 has to be worked over very thoroughly, because it is dangerous to the rights of individuals in this province. I’ll tell you right now, Mr. Speaker, that if it is not worked over satisfactorily to protect the rights of individuals, I will vote against it on third reading.

It’s really interesting how the government can decide that you can eliminate golf courses when not open for playing, but you cannot impose any obligation to maintain safe conditions on those golf courses. That’s what reads through the entire bill.

I wish the member for Scarborough Centre would examine the bill carefully. I’m sure when he has he will agree with me that it is a very dangerous precedent to set.

Hon. Mr. Drea: When I want legal advice I will get it from someone who knows.

Mr. Warner: Go to a good lawyer.

Hon. Mr. Drea: You haven’t been.

Mr. Warner: I have, I have been to several. What they tell me is if we pass section 4 of this bill it returns us to the law of 1866 under which residents in Ontario had no protection when they wandered on to private property. Not just adults, but children. Under this bill, if children happen to find themselves on private property and are injured, there is no recourse. And the minister knows that.

Other members have spoken about Bill 202 and Bill 203 because they are companion pieces of legislation. I understood we were dealing with the bills separately. I look forward to the debate on Bill 203, the bill which is essentially anti-labour legislation. I look forward to that debate.

Mr. Roy: Mr. Speaker, I would like to make a few comments on this legislation which I consider to be of prime importance because we’re dealing with an area of the law which is extremely complex, the question of occupiers’ liability and trespass. If I may, for purposes of reducing participation in this debate I will speak on both bills. The predecessor to Mr. Speaker in the chair seems to have allowed comment on both Bill 202 and Bill 203 because the ministry seems to consider that they are companion bills.

The first comment I would make is that I support the concern of my colleague from Huron-Middlesex that the Attorney General should bring in this legislation so late in the year and, therefore, on the basis of that make it very difficult to bring forward what we consider to be -- and I think what most people consider to be -- very important legislation, especially for the farming community and recreational community but also, by and large, for the public of Ontario.

It is somewhat annoying for those of us who participate in the legislative process and who take it seriously and try to have the best type of legislation possible, to first of all, have legislation introduced like the trespass act -- which really is the first of its type, as my colleague from Huron-Middlesex has said, since 1834. This comes in, after recommendations were made by the Ontario Law Reform Commission back in 1972. Those recommendations were made some seven years ago.

What makes it annoying is when the legislation is brought in and then we’re told by the Attorney General: “Let’s be expeditious about this. Let’s see if we can’t get this matter through.” There is some suggestion by the Attorney General that he doesn’t want any delay on the part of the opposition. In fact, the onus is often put on the opposition. If we participate not only on second reading but in committee, to suggest that the legislation go to committee is taken that somehow we are impeding the legislative process here. I consider that to be most insulting. My colleagues who have raised some concern about this are fully justified in doing so.

Just the other day in this House the Attorney General brought in a piece of legislation affecting citizens’ complaints against police and he suggested, at that time, that it be passed through the House expeditiously. That’s something we’ve been waiting for for the last four or five years and something we’ve had reports on for the last four or five years.

I trust that when statements like that are made by the Attorney General he would not be suggesting that the comments of those of us who participate in the legislative process and have what I consider to be comments that are valid -- and certainly the comments I’ve heard this evening are valid and justified -- are impediments and delays in the legislative process.

I’m sure, Mr. Speaker, as the presiding officer in this chamber, you would agree that the opposition still has a role to play in the legislative process of Ontario. I was not here, but I heard the parliamentary assistant make comments about this legislation. I trust he was not suggesting, as well, that the bills be passed without going to committee.

My colleagues from Middlesex, St. George and Lakeshore have mentioned that this legislation should go to committee. I think it should. I don’t know of a more difficult area of the law than the question of occupiers’ liability. Undoubtedly, Mr. Speaker, you’re aware that the existing law was based on common law and that liability involving individuals by and large rested on what we called the category of individuals involved. You’ve heard many discussions on legislation in this province dealing with gross negligence and with other terms such as this. It has happened before the courts on a regular basis that someone has argued that the negligence rested on whether the person involved was an invitee, a licensee or a trespasser. The courts were not satisfied that these were the only three categories. They went on to create other categories, some of which were called the bare licensee and the permittee and, in trespassing, they created such terms as inducement, allurement and so forth. The law involving responsibility of an owner or occupier became extremely complex.

I understood that the whole purpose of the Ontario Law Reform Commission report was to study this, to report back and to follow what other jurisdictions have done -- my colleagues have mentioned England, New Zealand and others -- and to try to codify or have some legislation which gives some guidelines on the question of occupiers’ liability and thereby some direction to the public about its liability and responsibility and some guidance to the courts, as well, about their liability and responsibility.

I think there was an attempt to do this by the law reform commission, but I have some concern about the end result that has been presented to us in this assembly by the Attorney General whether we will succeed in doing that.

As my colleague from Huron-Middlesex has said, I understand the concern of the community out there, of the farming community and of the community involved in recreational areas. Whether we’re talking about Skidoos, all-terrain vehicles, hunters or the great allurement of the urban community towards getting out in the outdoors hunting and so forth, it has reached the point where there was some legitimate concern about people going on to other people’s lands and about their responsibility. I think it important that legislation be brought in and some protection be given to that community.

My colleagues from that community agree with me that in giving protection to these people, to these occupiers and giving some response to their legitimate concern about their responsibility, we are not too restrictive. My colleague from St. George has raised some legitimate concerns. My colleague from Lakeshore also has raised some legitimate concerns.

When we talk about section 4, and we say that a person who enters premises described in the subsections shall be deemed to have willingly assumed all risks, I ask are we talking about children? That’s a legitimate concern. My colleague from Middlesex raised it.

Are we to say that an occupier will be absolved from all risks for children, even traps that may be set? That is another concern we have in this legislation.

Some of my colleagues have mentioned the fact that although we have changed the category of people who may or may not come on the land in respect to responsibility, whether one is an invitee or a trespasser or a licensee, we change that category of land which may make it as difficult. There are some categories that have been mentioned here as being difficult to accept, such as a golf course when it is not open for playing.

All these are concerns which warrant and merit that this type of legislation go to committee. Surely, it should be in committee so that not only the legal community but also the farming community, the recreational community, people who have expressed concern, people involved in the law, professors, et cetera, can come forward to express their points of view so that we may see how we can get the best legislation possible.

Surely that process is a process which has legitimacy. Surely it is a process which makes sense and logic. I want to say something to the parliamentary assistant on which I think my colleagues will agree with me. Just because the Attorney General comes in at the 11th hour with a piece of legislation which he says is important -- and we agree with him -- just because the Attorney General decides in December we should proceed and discuss this legislation with which we agree generally on second reading, doesn’t mean to say that we are saying yes to every dot and that every line is correct in this bill and that we do not have some legitimate concern.

I hope we are in agreement and that the parliamentary assistant will understand we are not trying to delay this legislation in any way, but that we have some legitimate concern. Our trust is that this legislation will go to committee so people may come forward and express their concerns.

I have other concerns about Bill 202 and concerns dealing with the fact of the restriction and the ability of a contract under section 5 of the legislation. I have concern about section 8 and that the premises used are under some form of tenancy. I don’t want to take up too much time as I know some of my colleagues want to participate, but I do want to put on record some of these concerns.

I can recall this Bill 203. Surely we have seen this before, perhaps through private bills or others. This colour coding I find interesting; I don’t know what the origin is of that, and about whether signs should be in red and yellow markings. This concerns the size of the signs as far as trespassing is concerned. I had some difficulty understanding this. It seems to me that a sign should reflect what it is meant to convey and that we should try to be as simple as possible with legislation. A sign should be a sign that one considers reasonable to convey what it is intended. If there is to be a sign saying you are not to trespass, then it should be a sign that a reasonably intelligent person can read, whether it is red, yellow or otherwise. It seems to me that is what a sign should convey. I find this to be of some interest.

[10:00]

I have great concern, as well, about the power of arrest under section 9 of the Trespass to Property Act. I also have some concern about the fines that are imposed under section 2 of the trespass act. All of these concerns, I trust, Mr. Speaker, will be responded to, not only by the parliamentary assistant in debate on second reading, but when these bills go to committee. When we hear comments not only from the parliamentary assistant but some of his colleagues, for instance the member for Wellington-Dufferin-Peel, and when some of our colleagues get up here and mention concerns about a bill, we are not doing so in order to stop or delay or in any way show undue concern about the legislation. I trust we will get a commitment from the parliamentary assistant that this bill will take its ordinary legislative process.

Surely, when he receives a report in 1972 and brings legislation forward in 1979, the Attorney General cannot stand in this House and say, “Let’s get on with this legislation. Let’s quit this foolishness.” If he wants our co-operation, let him show that he deserves it and we will give it to him, but let’s not get the impression from the Attorney General that because we express legitimate concerns in this Legislature we are in any way delaying the process.

I am so pleased to be addressing the member for Victoria-Haliburton (Mr. Eakins) in that chair as Acting Speaker because he fits it so well. I am sure he will, on our behalf, convey to the Attorney General and to the parliamentary assistant our concern about the legislation and, also, convey our concern that when he brings in a piece of legislation at the last minute we in the opposition are not rubber stamping it. We are going to look at it closely. If there are amendments to be brought to it, we will bring in such amendments.

Mr. Renwick: Mr. Speaker, I want to speak briefly on the bill. I am delighted to know there is an agreement in force which says this bill is going out to committee and there is, therefore, no need for me to stand here and urge that the bill go out to committee. I understand it is a definite agreement, therefore I don’t believe it will be necessary for me to speak at any great length.

I really am sorry the Attorney General of this province feels so uncomfortable in this assembly that he very seldom comes here, except during question period, in order to participate in the proceedings of it. It has been said to me that there is a certain arrogance about the Attorney General. I said, “Oh, that can’t possibly be so. It must be that we don’t make him feel at home here.” He must feel uncomfortable here. It may be the lesson he wants us to learn tonight is that we must perhaps be more deferential to him, more considerate of him, less demanding of him. Perhaps we should have special cameras here for him, special electronic devices so that whatever he says here can get instant replay outside.

It does seem to me that most of his statements of any significance are made outside. I would have thought in a funny way, that when we were talking about occupiers’ liability and about trespass to property that when the Attorney General was going to make a statement related to vandalism he might have chosen this forum to make it. I don’t quite know why that wouldn’t --

Mr. Warner: No way.

Hon. Mr. Grossman: Is that in the principle of the bill?

Mr. Renwick: Well, vandalism has something to do with the destruction of private property and I think the occupiers’ liability and trespass bills relate to private property. At least I believe that is the tenor of the bills.

In any event, I don’t believe for one moment that the Attorney General is arrogant because last Thursday night in the House of Commons we saw what happened when a minority government became arrogant and we wouldn’t want that to happen here. Certainly not in the closing days of this session. Although I alluded to the fact that we were quite prepared to run a parallel election, I doubt if the Conservatives in Ontario or my friends on the right are prepared to do that.

Out of curiosity of course, I would be anxious to know where the Attorney General is tonight, but I gather that none of his colleagues are prepared to let us know about that. This, of course, does no disservice to the member for Carleton-Grenville (Mr. Sterling), who is the fall person to carry the legislation for which he hears no responsibility in this assembly.

I guess we are old fashioned here about the parliamentary system. We believe that the minister of the crown who carries the responsibility for the legislation, apart perhaps from Bill 1 with that typographical correction in it that we will be dealing with, that any bill of principle the Attorney General sees fit to introduce into this assembly and makes a choice as to which hills he will proceed with on December 11 and then have us debate it on second reading at this time, would have at least considered it important enough to have been here.

The message I give to the government leader and to the Premier of this province is that when important legislation stands in the name of the Attorney General, I expect him, the Attorney General, to be present in this House --

Interjections.

Mr. Acting Speaker: Order.

Mr. Renwick: I yield to my friend the member for Carleton-Grenville.

Mr. Sterling: Mr. Speaker, on a point of privilege. When I made my introductory remarks I indicated to the Legislature I considered it a great privilege to bring forward this bill for second reading. The Attorney General has yielded to my wish to bring this bill to the Legislature today because I represent a rural riding; the agricultural community is very interested in this particular piece of legislation and it is at my urging that the Attorney General has allowed me to carry his bill.

Mr. Warner: You make excuses for him when he is a disgrace.

Mr. Sterling: If other members of this Legislature want to --

Mr. Warner: He is a disgrace to this Legislature.

Hon. Mr. Grossman: Is the member for Scarborough-Ellesmere an expert on law or rural communities?

Mr. Sterling: It is at my behest that I am here and I want to make that very clear to the other members of this Legislature that the Attorney General is at no way in fault for my representing him on this particular piece of legislation.

Mr. Renwick: Whatever privilege the Attorney General conferred upon the member for Carleton-Grenville is not a privilege in this House. If the Attorney General wanted to have the member for Carleton-Grenville debate this bill in the assembly that’s quite satisfactory to me, provided the Attorney General is sitting in his place to accept the responsibility which is his under the system.

As I say, I do not believe for one moment what many people have been saying, that the Attorney General is arrogant.

Hon. Mr. Grossman: I am glad that is on the record.

Mr. Renwick: I am glad that the Minister of Industry and Tourism is glad it’s out of my system as well.

Hon. Mr. Grossman: No, I said I’m glad it’s on the record.

Mr. Renwick: Has he got a question of privilege? I yield the floor to the member for St. Andrew-St. Patrick.

Hon. Mr. Grossman: I was just sitting here speculating where all but one of the member’s other front-bench colleagues are on this very important bill. I notice that many members of cabinet are present on this side and several members of the Liberal Party are in the front bench. I lust wondered where all the front benchers for the NDP were on this very important piece of legislation, because we do in fact think this is an important bill.

In any case, I am glad the honourable member got it on the record that the Attorney General was not arrogant and for my part I want to confirm that I don’t think the rest of the member’s front bench is arrogant for ignoring this bill this evening either.

Mr. Roy: You see why the minister is so good with the radio ads.

Mr. Renwick: I certainly do. I am looking forward to the bill on the Island homes. I wonder whether it will be called in this session; I think it is Bill 158.

Hon. Mr. Grossman: Are you going to filibuster that too?

Mr. Renwick: No, we are going to amend it.

Mr. Speaker, as the Premier sometimes says, I was provoked into speaking longer on this bill than I had intended. I want to say that I received today a letter from the president of the Advocates Society about this legislation, which points up a matter that is of much concern to us as to what it was in the processes of the Tory government that decided this bill would be called for second reading and referred to committee, when Bill 201 is going to die on the Order Paper in the assembly.

I would have assumed, if the government were going to send these two bills out to committee, even under duress, that it would have agreed also to have debated Bill 201 and to send it out to committee so we could have dealt with it as well.

The president of the Advocates Society states that on December 7, 1979, he received a letter from the Attorney General, indicating that in part because of the representations the society made to him with respect to the bill it was only going to be introduced this session for first reading so it could be studied and further representations could be made by interested groups.

He then goes on to state that “late on Friday” -- that is, December 14 -- “the Attorney General, because of certain representations made to him, intends to attempt to have the occupiers’ liability legislation passed at the current session of the Legislature next week.” I am not going to go into the reasons why the president of the Advocates Society, which is a very distinguished body in the province, as the member for St. Andrew-St. Patrick knows, and which has very considered views and concerns about the law of the province, should write to me to put the position to the government that the bill must be dealt with in committee.

I feel deeply honoured that the president of the Advocates Society would select me. It is an expression of their concern about what this legislation is doing that they want it to go out to committee and I am delighted we can give them that specific assurance.

I want to say very clearly to the parliamentary assistant that it may well have been that there came a time in the Roman Empire when the codification of laws under Justinian was part of the process. There may have come a time in the British Empire, in the late 19th century, when the codification of law in the dying days of an empire was a proper and fit way in which to deal with the contribution of that empire to civilization.

I am suggesting to the parliamentary assistant that it is very dangerous in Ontario at this time to be considering the codification of law when there are all sorts of new, conflicting and difficult relationships being developed, especially in this province, with respect to the general right of the citizenry for recreation and those of other persons in the farm communities. I take my seat behind no one in my concern that the legitimate interest of the farm community in the protection of its property should be upheld. I also take it, as a very concerned person representing an urban riding, that the people in the urban society who leave the city to participate in recreational and other alternatives outside pose very difficult questions of law for the interrelationship of those people under law in a way which will be acceptable.

As I read this bill, as I read both the bills that are before us tonight, there is something so succinct about them as to be almost Draconian in their nature. There is something inflexible and rigid about them which will cause untold difficulty for people in the province.

[10:15]

I do not believe that one fries to work out complicated interpersonal relationships related to the use of property by some kind of a codification which bears very close resemblances to criminal law in the penalties which are levied. I think we are about to deal in situations which require extreme sensitivity in a way which shows, in my judgement, a lack of sensitivity on the part of the government.

I reiterate what I say. I take my seat behind no one with respect to the need to protect in this society the legitimate interests of people in those bundles of interest which are called the right of ownership to property. But everybody knows in a society such as this that the right of property is no longer absolute. The right of property is no longer to be determined by the colour of the signs and the notices which are put on the property. That isn’t the way life works any more. One does not give anybody an untrammelled right to say that anybody coming on to one’s property with the intention to commit a crime has the licence to murder. One just doesn’t have that kind of right.

I have a legitimate right to protect my property in self-defence; that’s what the law says. It’s not an absolute right. There’s no absolute right to kill in the land that I know of and under any circumstances, even under the codification of the criminal law which we owe to the uncle of Virginia Stephen, who became Virginia Woolf.

When we embark upon this kind of law to replace in three or four pages many years of case after case after case of the English law, then I want to be sure we are not dividing the people of this province into questions of whether they are in the rural community or the urban community. I don’t want the law to be seen as that kind of a political weapon.

I believe the introduction of this bill was brought into this House because of some sense of some cheap political gain that could be made. I think it does a disservice to the farming community in the province and to the people in the cities and towns of this province, if the minister is going to try to divide the community on a bll which is of such a fundamental nature.

This bill deals with people’s property in the city as well as in the country. It deals with everybody’s property. As we will speak about on the other bill, it touches upon very profound and real civil liberties and very profound and real political liberties which have nothing to do with questions of the recreational use of land.

I’ve gone on at sufficient length. Fortunately, because of the commitment which the government has given to put the bill out to committee, there’s no need for me to go on at any greater length. I want the minister to know we’re very concerned about the bill. We’re very concerned about its genesis; we’re very concerned about the timing of its introduction; and we’re very concerned about the sense that somehow or other there was a political motivation behind a bill for which there should be no political motivation.

We are supporting the bill on second reading. We want to see this matter dealt with in committee. I want to see it dealt with in committee in such a way that if it turns out that the bill is not a wise bill, that the principle of codification is not right at this time in Ontario respecting the use of property, then the government will have the courage not to proceed with the bill and let the ordinary and everyday courses of the common law take care of these situations. I want the government to be open about it, I want it to be real about it and I don’t want it to use this kind of a bill and the law reform commission and the work which has been done by that commission to divide the communities in this province for some cheap political purpose.

Mr. Eaton: I am pleased to see that this legislation has finally reached this chamber. If there is anything that can be criticized as far as the legislation and the Attorney General is concerned it is certainly the time it has taken to get it here. I think my colleague from Huron-Middlesex (Mr. Riddell) was right; it should have been here at the beginning of this session.

We had presentations on the previous proposal until the end of June, so they had time to consider those presentations and draft the legislation. I for one think the Ministry of the Attorney General and the Attorney General should be criticized for that legislation not being here much sooner.

However, I think it is pretty cheap the way some people have taken shots at the Attorney General for not being the one to carry the legislation. I think the parliamentary assistant is not only the one who has the knowledge of the law that is coming in but he also represents a rural area; he is vitally interested in the bill, that is why he is carrying it.

Those members talk about politics. They play cheap politics pretty often. The member for Riverdale referred to splitting the urban and rural community because of this bill. I will tell him it is the circumstances under the present legislation that are splitting the rural and urban community. Those in the urban community have protection; people can’t enter their backyard or frontyard and do what they damned well please, but in the rural community they are doing it. That is why there is such a need for the change in the legislation, so the people in the rural community will have the same protection of their property rights as they do in the urban community.

If the members look at the previous bill and then at the present bill they will see the bill now protects agricultural land; it includes orchards, which people could have entered before and taken fruit; it now includes vineyards, which is one of the changes which has come in since June.

I think it is that kind of legislation that brings equality for both the rural and urban people that should bring them together on the matter. People can now go to a rural community and say, “We don’t have the right to be on your land, but can we use it?” I tell you, Mr. Speaker, a lot of people will give them the right to use it. They are willing to work with people who will use their property in an organized and fair way, but they don’t want the abuse they have taken in the past because they haven’t had that protection.

I think this legislation is a great step forward. It puts in some teeth that have been lacking in any protection that was there. The protection itself was weak. Once you did get someone into court it might have resulted in a $10 fine, or a $100 fine at the most. Now if somebody is flagrantly treating someone else’s property as a place where they can do anything they want, there is an opportunity for somebody in that situation to know they are going to get a fine that means something, not just a fine that represents a licence to be on someone else’s property.

The people in the rural community want to work with groups as far as recreation is concerned. As for the suggestion with regard to signs, if a ski club comes in and makes arrangements with the landowner to use his property, they can put signs saying skiing is allowed. That particular recreation would be allowed on the property to the exclusion of other people entering without permission. This is the kind of protection rural property owners have been looking for. The main emphasis should be put on informing the public that if they enter property without permission they are trespassers.

I am personally a little disappointed that the bill has to go to committee. I would have liked to see it passed --

Mr. Speaker: Point of order, the member for St. George.

Mrs. Campbell: I wonder if I could have clarification as to what bill the honourable member is discussing at this point.

Mr. Eaton: Like all the other members, I am talking about both the bills in combination.

Mrs. Campbell: Mr. Speaker, I was one of the speakers who confined themselves to the bill that we had had introduced.

Mr. Eaton: The member for St. George probably was the only one who did. She wasn’t here after she presented her case. She went out and didn’t hear anybody else talking about it. There were several people who referred to both pieces of legislation at the same time. If members just want to talk about the one and then repeat the whole thing again on the other part of it, that’s fine. Personally, I wanted to speak about both of them at the same time, because they are in combination; they both have an effect on the vital interests of the rural people in this particular province. I’m referring to both of them. I won’t get up to speak again on the other bill when the time comes.

Mrs. Campbell: Fine.

Mr. Eaton: Fine? Okay.

Mr. Germa: Why are you filibustering?

Mr. Eaton: Nobody is filibustering. There is not going to be a vote on it tonight. We had a member from the NDP come in here and take the whole first hour. Our fellows, I think between the two of us, have taken 10 minutes. Talk about filibustering!

Mr. Speaker, this legislation in going to committee will give people an opportunity to provide input, as I started to say before I was rudely interrupted. I was one who wanted it to go ahead very quickly. I can understand, from what some of the members have said, that they want it to go to committee so we can have some discussion on it in committee.

I’m pleased it’s going to the resources development committee, since I am a member of that committee. I know the member for Huron-Middlesex (Mr. Riddell) is interested; he’s on that committee. The member for Wellington-Dufferin-Peel (Mr. J. Johnson) is on that committee and is interested; he is one of the ones who has also worked hard to see this legislation come to life.

This is legislation that should be supported by this House. It will not split the rural and urban communities, as the member for Riverdale (Mr. Renwick) suggested. I think it can bring them closer together, to work together to see that property rights are protected and at the same time that people can get their recreational needs met. I urge the members of this House to support the bill.

Mr. Speaker: Will the member for Grey (Mr. McKessock), who seems to be the next person who wishes to speak on the bill, move the adjournment of the debate so we can give the government House leader an opportunity to indicate what the business of the House is likely to be?

On motion by Mr. McKessock, the debate was adjourned.

BUSINESS OF THE HOUSE

Hon. Mr. Wells: Mr. Speaker, as I indicated last Thursday, pursuant to the rules, I would further indicate today what the business of the House would be for Wednesday and Thursday of this week.

The House will meet tomorrow from 10 a.m. until 1 p.m.; then, after the luncheon break, from 2 p.m. until 6 p.m., with the routine proceedings at 2 p.m. In the morning we will finish this legislation, Bill 202 and 203; if any time is left after that, we will proceed on concurrences that are on the Order Paper -- and right through the afternoon session tomorrow -- in this order: Attorney General, Solicitor General, Provincial Secretary for Justice, Health, Agriculture and Food, Environment, Natural Resources, Energy, Provincial Secretary for Social Development, Provincial Secretary for Resources Development and Industry and Tourism.

On Thursday, the House will meet at 10 a.m., when we will have the routine proceedings, followed by any concurrences that have not been finished on Wednesday. The House will break for lunch at 1 p.m. and resume at 2 p.m., when we will have the windup speakers in the budget debate, with the vote followed by the supply bill and, hopefully, prorogation by suppertime so we can all go home and enjoy Christmas and do our Christmas shopping.

Mrs. Campbell: I would inquire of the government House leader if he is aware that the justice committee is sitting tomorrow morning at 10 o’clock. While it is not dealing with justice matters, I understood that by the arrangement of this House we would not be placed in the position of having two matters conflicting at the same time. I would like some clarification.

Hon. Mr. Wells: Mr. Speaker, I presume my friend is referring to the justice committee’s consideration of Bill 19 which is, in effect, an educational bill. Therefore, I suppose she is right in that we are conflicting with the estimates of the Attorney General and Solicitor General. If it’s in order and we had the unanimous consent of the House, we could allow this to happen, since the matter under consideration in the committee is certainly not a justice matter. Perhaps we could have unanimous consent to allow the House to consider concurrence in the estimates of the Attorney General, if we arrive at that. Actually, we are going to be considering the bills first anyway.

Mrs. Campbell: I’m speaking of the bills.

Mr. Mattel: She is speaking of the bills.

Hon. Mr. Wells: Oh, the bills, you’re right.

Mrs. Campbell: The Attorney General’s bills are before the House.

Mr. Speaker: At this point, that’s hypothetical. I’m sure those who are responsible for ordering the business of the House can come to an amicable resolution to the problem, should it arise.

The House adjourned at 10:32 p.m.